NO. 82-372 

IN TFIE SUPREME COURT OF THE STATE OF FlONTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsANTHONY MARTIN LAMERE, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade, The Honorable 

H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Marcia Birkenbuel, Great Falls, Montana 

For Respondent: 

Bon. Mike Greely, Attorney General, Helena, 

Montana 

J. Fred Bourdeau, County Atty., Great Falls, 

Montana 

Submitted on Briefs: December 16, 1982 

Decided: February 3, 1983 

Filed: FEB 3 - 1983 
Nr. Chiei Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Anthony Martin LaMere was convicted by a jury in 

Cascade County, Montana, of burglary and felony theft. He 

now appeais the conviction. We affirm. 

On November 29, 1981, at approximately 5:30 a.m., 

Scheel's Hardware store in Great Falls was burglarized and 

twenty-one handguns were stolen. Entry was effectuated by a 

car which was driven through a large window of the store. 

lnvestigating police officers found the following evidence 

near the point of entry: tire marks on the sidewalk caused 

by vehicle acceleration, a piece of broken turn signal lens, 

rubber molding in the brick of the building, and a yellow 

safety pole standing outside the building which had been 

scraped. From this evidence, police located a suspect 

vehicle. By ma.tching the damage done to the store to that 

of the car, they determined that the suspect vehicle was 

actually used to commit the crime. The car was owned by 

Leonard Dale Champagne. 

On December 4, 1981, Great Falls Police Detective 

Larry Kenman went to Champagne's residence and spoke with 

Tina Arguello who was living there at the time. She stated 

that on the evening in question Champagne had given the keys 

to the car to appellant while the two were at a party. She 

further said appellant left the party with William Thumm. 

Also on December 4, 198l, Thumm was arrested and questioned about the crimes. Originally denying any knowledge 

of the offenses, he later stated that he rode as a passenger 

in the car while appellant drove it through the window of 

the store. At that point, he said, appellant entered the 

store and returned with a pillowcase full of guns. Thumm 
was cndrged with burglary and telony thert. 

On December 7, 1981, Champagne came to the police 

statlor1 and gave a statement to Detective Renman. He said 

that he ha3 given his car keys to the appellant but had no 

 now ledge of appellant's intentions. He further stated that 

on the next day he received two handguns from appellant in 

lieu of damage to the vehicle occasioned by the appellant's 

actions and he had a "good idea" the guns were stolen. 

Appellant was arrested and charged with burglary and 

felony theft. He plead not guilty to the charges, and a 

jury trial was schedules for April 19, 1982. 

On April 16, 1982, in the presence of the appellant 

ana hls attorney, the State took Champagne's statement. 

Champagne said that he loaned the car to appellant but did 

not receive any guns. He then changed his story and stated 

that he did receive two handguns as payment for damage to 

hls car. Champagne was not charged with any offense related 

to the crimes or perjury. 

At trial the State presented testimony of Evelyn 

Komeotis who was living with Champagne at the time of the 

burglary. She testifled that in the early morning hours of 

the day of the crimes the appellant called for Champagne and 

asked her if Champagne "wanted to make some money." Further, 

she stated that after Champagne hung up the phone it rang 

again, he spoke to the caller and then left the residence. 

Komeotis also testified that on the afternoon after the 

burglary, whlle she was in bed, she thought she heard the 

appellant with Champagne in an outer room and that Champagne 

had two handguns with him. For some unknown reason, 

Champagne entered Komeotis's bedroom and held one of the 
pistols to her head. 

Tina Arguello testlfled that on the evenlng before the 

burglary she had been very intoxicated. She stated that she 

lled when she told Detective Kenman she saw Champagne give 

his car keys to appellant and that she in fact could not 

remember what had happened that evening. She indicated that 

Champagne had asked her to give a false statement to keep 

hlrn out of trouble. 

William Thumm also testified on behalf of the State. 

In essence his testimony was consistent with the statement 

he gave police. 

Appellant was convicted of burglary and felony theft. 

Further, due to a prior felony conviction and in accordance 

with section 46-18-501(2), MCA, the State moved that the 

appellant be classified as a persistent felony offender. A 

hearing was held on June 11, 1982. The State presented 

testimony of Cascade County Deputy Sheriff Laurie Carrette 

who testrfied that two fingerprint cards were located in 

appellant's file in her office and each card represented a 

separate arrest of the appellant. Further, she indicated 

that such records are kept in the ordinary course of 

business. Detective Kenman also testified for the State 

that the two cards represented separate arrests of the 

appellant and that the appellant was the individual 

identified on both cards. Patrick Ryan testified that he 

was a probation and parole officer for the State of Montana 

and he supervised the appellant when he served a suspended 

sentence for felony theft on probation from 1977 to 1980. 

The court also took judicial notice of the fact that 

appellant signed and filed the following petition in the 
court: 

"Now comes a document for the defendant, 

TONY M. LAMERE, from the Montana State 

Parole to summons patroi officer Pat Ryan 

to uphold his duty and to witness at the 

defendant's, TONY 114. LAMERE hearing that 

his last felony due to his own guilty 

plea was a suspended sentence and was 

completed on November 10, 1980." 

'The court granted the motion to classify the appellant as a 

persistent felony offender. 

The appellant was sentenced to ten years confinement 

in the Montana State Prison for the burglary and ten years 

for the felony theft. He was sentenced to an additional 

twenty-five years pursuant to the persistent felony offender 

designation. The sentences are to be served consecutiveiy. 

On appeal, appellant presents three issues: 

1. Was Leonard Champagne an accomplice of appellant, 

thus requiring the State to corroborate his testimony? 

2. If Champagne was accountable for appellant's 

offenses, was his testimony and that of Thumm sufficiently 

corroborated? 

3. Did the trial court err in its designation of the 

appellant as a persistent felony offender where the evidence 

of the prior conviction consisted of hearsay testimony 

presented by appellant's probation officer? 

Appellant first contends that Champagne was legally 

accountable for the offenses he committed. Section 45-2- 

302, MCA, defines when accountability exists. It reads in 

part: 

"A person is legally accountable for the 

conduct of another when: 

"(I) having a mental state described by 

the statute defining the offense, he 

causes another to perform the conduct, 

regardless of the legal capacity or 
mental state of the other person; 

"(3) either before or during the commission of an offense with the purpose to 

promote or facilitate such comn~ission, he 

solicits, aids, abets, agrees, or attempts to aid such other person in the 

planning or commission of the offense. 11 ... 

Here there is no evidence that Champagne had any 

knowledge or involvement with the appellant's actions. 

Indeed, Champagne admitted he at least had a "good iuea" the 

guns he received were stolen, but he did not know what the 

appellant was planning to do with his car when he relinquished it. Thus, he did not cause the appellant to commit 

the crimes nor did he aid or abet the appellant to 

facilitate commission of the crimes. 

We recognize there was some testimony presented that 

may indicate Champagne had prior knowledge of the crimes. 

However, there is substantial evidence upon which to 

conclude that Champagne was not responsible for the acts of 

the appellant. 

It also appears that the appellant is asserting 

Champagne is legally accountable for his crimes under the 

definition of "obtains or exerts control," required by 

the theft statute. Section 45-2-101(39), MCA, defines 

"obtains" and "exerts control" and includes possession as a 

method by which this requirement can be met. Consequently, 

since appellant was charged and convicted of theft under 

section 45-6-301(1)(a), MCA, which in essence is knowingly 

obtaining or exerting unauthorized control over property of 

the owner to deprive said owner of his property, Champagne's 

mere possession of the stolen property falls within the same 
statutory subsection of theft. 

This is not a correct reading of the statute. The 

tneft statute defines four ways the crime can be committed. 

Appellant was convicted of theft under section 45-6- 

301(l)(a), MCA, which contemplates actual taking. Champagne, 

on the other hand, could only be convicted of theft under 

section 45-6-301(3)(c), MCA, which is essentially possession 

of stolen property. This subsection states: 

"(3) A person commits the offense of 

theft when he purposely or knowingly 

obtains control over stolen property 

knowing the property to have been stolen 

by another and: 

"(c) uses, conceals, or abandons the 

property knowing such use, concealment, 

or abandonment probably will deprive the 

owner of the property." 

These are statutorily distinct crimes. Possession of stolen 

property under section 45-6-301, MCA, supplants the old possessory statute, section 94-2721, R.C.M. 1947. All theftrelated offenses are described in section 45-6-301, MCA. 

However, commission of one of the offenses does not make one 

responsible for all other crimes outlined in the statute. 

In support of his contention that Champagne's possession of stolen property makes him accountable, appellant 

cites State v. Standley (1978), 179 Mont. 153, 586 P.2d 

1075. The cases are clearly distinguishable. In Standley 

we held that one of the State's witnesses was an accomplice 

whose testimony must be corroborated. However, the defendant 

was charged with possession of stolen property, - not theft. 

The State's witness could have been charged with the same 

crime since he was knowingly holding stolen property, which 

he eventually appropriated for his own use. 
Pinaliy, in State v. Wirtanen (1965), 146 Mont. 268, 

406 P.2d 376, this Court specifically held that a thief 

could not be an accomplice of a receiver of stolen property. 

State v. Mercer (1943), 114 Mont. 142, 133 P.2d 358; State 

v. Keays (19341, 97 Mont. 404, 34 P.2d 855. In coming to 

this conclusion, we determined that the rule was predicated 

on the separate offense theory which states that larceny and 

receiving stolen property are separate and distinct crimes. 

Secondly, appellant contends that the testimony of 

Champagne and Thumm, who he asserts are accomplices, was not 

corroborated. Section 46-16-213, MCA, reads: 

"A conviction cannot be had on the testimony of one responsible or legally 

accountable for the same offense, as 

defined in 45-2-301, unless the testimony 

is corroborated by other evidence which 

in itself and without the aid of the 

testimony of the one responsible or 

legally accountable for the same offense 

tends to connect the defendant with the 

commission of the offense. The corroboration is not sufficient if it merely shows 

the commission of the offense or the 

circumstances thereof." 

In addition, there is a wealth of case law which 

enunciates principles best summarized in State v. Kemp 

(1979) I Mon t . , 597 P.2d 96, 99, 36 St.Rep. 1215, 

1218, and recently recited in State v. Forsyth (1982), 

Mont. , 642 P.2d 1035, 1038-1039, 39 St.Kep. 540, 544: 

". . . First of all, the sufficiency of 

such evidence is a question of law. [Kemp 

citation omitted.] To be sufficient, it 

must show more than that a crime was in 

fact committed or the circumstances of 

its commission. It must raise more than 

the suspicion of the defendant's involvement or opportunity to commit the crime 

charged. But the evidence need not be 

sufficient by itself to support the 

defendant's conviction or even to make 

out a prima facie case against him. It 

may be circumstantial and can come from 

the defendant or his witnesses. [Kemp 
citation omitted.] Under section 46-16- 

213, MCA, it must be evidence which in 

itself and without the aid of the testimony of the one responsible or legally 

accountable for the same offense tends to 

connect the defendant with the commission 

of the offense." 

Since we have determined that Champagne is not responsible for appellant's crimes, his testimony need not be 

corroborated. Furthermore, we believe the testimony of 

Thumm, who was clearly an accomplice, was sufficiently 

corroborated. 

Essentially, 'I'hurnm testified that (1) he was at a 

party with the appellant prior to the burglary and theft; 

(2) he left with appellant in Champagne's car and appellant 

was driving; (3) they both went to Scheel's Hardware; (4) 

appellant drove the car through a window of the store; (5) 

appellant left the car and entered the store; (6) appellant 

returned with a bagful1 of handguns; and (7) they both 

returned to the party. 

The following evidence tends to connect the appellant 

with the crime, thus providing adequate corroboration of 

Thumm' s testlmony. Champagne testified that both appellant 

and Thumm were at the party. Carmen Komeotis testified that 

appellant was at the party. Champagne also stated that he 

lent his car to appellant. Furthermore, the damage done to 

the car matched the damage done to tne store and physical 

evldence found at the scene of the crime was sufficiently 

connected to the vehicle. This was supported by the testimony of Detective Larry Renman. Detective Renman also 

testified that he believed the car was rammed into the 

window so appellant could gain entry to the store. Evelyn 

Komeotis testified that she heard appellant in her home the 
day aiter tile crimes were coininitted, and Champagne had two 

handguns which he indicated were fruits of the crime, given 

in payment for damage to his vehicle. Finally, Champagne 

testified that he had a "good idea" the guns were stolen and 

from where they were stolen. 

Thirdly, the appellant asserts that the testimony of 

Patrick L. Ryan, probation and parole officer for the State 

of Montana, regarding appellant's prior conviction was 

hearsay and thus not competent proof of such convictions. 

In State v. Cooper (1971), 158 Mont. 102, 489 P.2d 99, 

this Court held that in order to present evidence of a prior 

conviction in a sentencing proceeding there must be competent proof that the defendant in fact suffered the prior 

conviction. Moreover, the Montana Rules of Evidence exempt 

sentencing proceedings from evidentiary constraints. Rule 

101(c)(3), Mont.R.Evid. Persistent felony offender hearings 

are part of the sentencing proceeding. Policy for this is 

sound, as the court wants to examine complete historical 

data and potential of the defendant before it pronounces 

sentence. 

The testimony of Ryan, al.though arguably hearsay, was 

properly admitted during the persistent felony offender 

hearing pursuant to Rule 101(c) (3) of the Montana Rules of 

Evidence. Furthermore, it was competent proof that the 

appellant was the same individual who was convicted of the 

prior felony. Ryan testified that he supervised one Anthony 

Martin LaMere when he served a suspended sentence on probation for a felony theft committed in 1977. He further 

testified that the same person is the individual convicted 

of the Scheel's burglary and theft. 
Aff irrned. 

spc~y$?@~(Chief Justice 

, 

Z 

We concur: 

I U 

i / Justices 4